Bhasker Patel, MD, FACC, DAB CR5365 (2019)

DECISION

Petitioner's Medicare billing privileges were deactivated on June 21, 2017, as a result of his failure to timely comply with a request that he revalidate his Medicare enrollment. For the reasons discussed below, I conclude that the effective date of Petitioner's reactivated Medicare billing privileges remains October 9, 2017.

I. Background and Procedural History

On October 11, 2016, First Coast Service Options, Inc. (First Coast), a Medicare administrative contractor, sent letters1 to Petitioner, a cardiologist, requesting that he revalidate his individual Medicare enrollment record no later than December 31, 2016. See Centers for Medicare & Medicaid Services (CMS) Exhibit (Ex.) 2 at 1, 4; see CMS Ex. 5 at 1. First Coast instructed Petitioner to "update or confirm all the information in

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[his] record ...." CMS Ex. 2 at 1. First Coast cautioned Petitioner that if "[his] enrollment is deactivated," he "will not be paid for services rendered during the period of deactivation" which "will cause a gap in [his] reimbursement." CMS Ex. 2 at 1, 4.

On May 17, 2017, First Coast sent Petitioner a letter informing him that he had not revalidated his enrollment record as had previously been requested. CMS Ex. 3 at 1. First Coast again warned Petitioner that his billing privileges could be deactivated, which would cause a gap in his reimbursement. CMS Ex. 3 at 1.

Because Petitioner had not "revalidated [his] enrollment record with [First Coast]," First Coast informed Petitioner in a letter dated June 22, 2017, that it had deactivated his billing privileges on June 21, 2017. CMS Ex. 4 at 1; see P. Ex. 6. First Coast informed Petitioner that it "will not pay any claims after this date." CMS Ex. 4 at 1. First Coast sent this letter to Petitioner at the same address to which it mailed the letters requesting that he revalidate his enrollment record. CMS Ex. 4 at 1; see CMS Exs. 2 at 1; 3 at 1.

Petitioner submitted an enrollment application and reassignment of benefits application,2 for purposes of revalidation, via the internet-based Provider, Enrollment, Chain and Ownership System (PECOS) that First Coast received on October 9, 2017. CMS Ex. 5 at 1. In a letter dated November 14, 2017, First Coast informed Petitioner that it had approved his application, effective October 9, 2017. CMS Ex. 1 at 10-11. First Coast explained that the "effective date, 10/09/2017 was given based on ... [t]he receipt date of the application," pursuant to 42 C.F.R. § 424.520(d). CMS Ex. 1 at 14.

Petitioner submitted a request for reconsideration, dated December 4, 2017. CMS Ex. 1 at 6-9. Petitioner explained that he revalidated his "organizational" enrollment for his practice, Cardiovascular Clinic, Inc., on June 27, 2017, and was "unaware that the revalidation was for the organizational [national provider identifier] NPI number ONLY, and that it did not include [his] individual NPI number." CMS Ex. 1 at 7; see CMS Ex. 1 at 17 (August 17, 2017 approval of the revalidation enrollment application of Cardiovascular Clinic, Inc.). Petitioner also explained that "[w]hen the Medicare revalidation was submitted on June 27, 2017 thru [sic] [PECOS] it was thought that both the organizational and individual NPI numbers where [sic] being revalidated." CMS Ex. 1 at 8. Petitioner stated that he had a "small single provider office" and that "never was it intentional not to be in compliance," and he reported that he had "put into place measures so that this will not be repeated." CMS Ex. 1 at 8-9. Petitioner added that he did not have a credentialing department at the time of the revalidation request and that his office manager "had a very difficult time navigating the [Medicare enrollment] system to understand the problem." CMS Ex. 1 at 8-9. Petitioner discussed that he had since hired a billing company. CMS Ex. 1 at 8.

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First Coast issued a reconsidered determination on January 12, 2018, in which it maintained the October 9, 2017 effective date of Petitioner's reactivated billing privileges. CMS Ex. 1 at 2. First Coast explained the following:

On October 11, 2016, First Coast Service Options Inc. mailed a letter requesting the revalidation of Bhasker Patel MD. On May 17, 2017, First Coast Service Options, Inc. mailed a past due letter for the revalidation of Bhasker Patel MD. On June 21, 2017, First Coast Service Options Inc. stopped the billing privileges of Bhasker Patel MD as was stated in the notification dated June 22, 2017. A CMS 855I application was received for the reactivation/revalidation of Bhasker Patel MD on October 9, 2017. The application was processed and approved on November 14, 2017, creating a gap in Medicare billing privileges from June 21, 2017 through October 08, 2017 ... Upon review of [the] reconsideration request and all previously submitted information, it has been determined the gap in Medicare billing privileges was issued correctly.

CMS Ex. 1 at 2.

Petitioner submitted a request for an administrative law judge (ALJ) hearing that was received on March 15, 2018. ALJ Keith W. Sickendick issued an Acknowledgment and Prehearing Order (Prehearing Order) on March 20, 2018, at which time he directed the parties to file their respective pre-hearing exchanges.3 CMS filed a Motion for Summary Judgment and Pre-Hearing Brief (CMS Br.), along with five proposed exhibits (CMS Exs. 1-5). Petitioner, through counsel, filed a response to CMS's brief and motion for summary judgment (P. Br.) and two exhibits (P. Exs. 6-7). In the absence of any objections, I admit all submitted exhibits into the evidentiary record.

A hearing for the purpose of cross-examination is unnecessary because neither party has proposed any witnesses to testify at a hearing. Prehearing Order § II.D. (directing the parties to submit a list of witnesses they intend to call at an oral hearing). I consider the record in this case to be closed, and the matter is ready for a decision on the merits.4

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II. Issue

Whether CMS had a legitimate basis to assign Petitioner an October 9, 2017 effective date for his reactivated Medicare billing privileges.

III. Jurisdiction

I have jurisdiction to decide this case. 42 C.F.R. §§ 498.3(b)(15), 498.5(l)(2).

IV. Findings of Fact, Conclusions of Law, and Analysis5

1. On October 11, 2016, First Coast requested that Petitioner revalidate his individual Medicare enrollment record no later than December 31, 2016.

2. On May 17, 2017, First Coast again requested that Petitioner revalidate his Medicare enrollment record. 

3. On June 22, 2017, after Petitioner did not revalidate his enrollment record, First Coast informed Petitioner that it had deactivated his billing privileges on June 21, 2017. 

4. On October 9, 2017, Petitioner submitted enrollment applications to revalidate his enrollment record, and First Coast approved the revalidation applications and assigned an October 9, 2017 effective date for reactivated Medicare billing privileges. 

5. An effective date earlier than October 9, 2017, is not warranted for the reactivation of Petitioner's Medicare enrollment and billing privileges.

As a cardiologist, Petitioner is a "supplier" for purposes of the Medicare program. See CMS Ex. 5 at 1; see also 42 U.S.C. § 1395x(d); 42 C.F.R. §§ 400.202 (definition of supplier); 498.2. A "supplier" furnishes items or services under Medicare and the term applies to physicians or other practitioners that are not included within the definition of the phrase "provider of services." 42 U.S.C. § 1395x(d). A supplier must enroll in the Medicare program to receive payment for covered Medicare items or services. 42 C.F.R. § 424.505. The regulations at 42 C.F.R. Part 424, subpart P, establish the requirements for a supplier to enroll in the Medicare program. 42 C.F.R. §§ 424.510-424.516; see also 42 U.S.C. § 1395cc(j)(1)(A) (authorizing the Secretary of the U.S. Department of Health and Human Services to establish regulations addressing the enrollment of providers and suppliers in the Medicare program). A supplier who seeks billing privileges under

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Medicare "must submit enrollment information on the applicable enrollment application." 42 C.F.R. § 424.510(a)(1). "Once the provider or supplier successfully completes the enrollment process ... CMS enrolls the provider or supplier into the Medicare program." 42 C.F.R. § 424.510(a)(1); see also 42 C.F.R. § 424.510(d) (listing enrollment requirements). Thereafter, "[t]o maintain Medicare billing privileges, a ... supplier ... must resubmit and recertify the accuracy of its enrollment information every 5 years." 42 C.F.R. § 424.515. Further, a supplier "may be required to revalidate their enrollment outside the routine 5-year revalidation cycle." 42 C.F.R. § 424.515(e).

CMS is authorized to deactivate an enrolled supplier's Medicare billing privileges if the enrollee does not provide complete and accurate information within 90 days of a request for such information. 42 C.F.R. § 424.540(a)(3). If CMS deactivates a supplier's Medicare billing privileges, "[n]o payment may be made for otherwise Medicare covered items or services furnished to a Medicare beneficiary ...." 42 C.F.R. § 424.555(b); Urology Grp. of NJ, LLC, DAB No. 2860 at 10 (2018) ("The regulations, taken together, clearly establish that a deactivated provider or supplier was not intended to be entitled to Medicare reimbursement for services rendered during the period of deactivation."). Further, and quite significantly, the Departmental Appeals Board (DAB) has unambiguously stated that "[i]t is certainly true that [the petitioner] may not receive payment for claims for services during any period when his billing privileges were deactivated." Willie Goffney, Jr., M.D., DAB No. 2763 at 6 (2017); see Urology Grp., DAB No. 2860 at 11 ("Taking [the] unique effects of revocation into consideration, it is reasonable to conclude that CMS intended for revocations and deactivations to share the feature of precluding a provider or supplier from collecting reimbursement for services rendered during the period of inactive Medicare billing privileges, while simultaneously intending for revocations to have more severe consequences on a provider's or supplier's ability to participate."); Frederick Brodeur, M.D., DAB No. 2857 at 16 (2018) ("Allowing a deactivated supplier to bill for services furnished during a period of deactivation would conflict with section 424.555(b) of the regulations ...."). The regulation authorizing deactivation explains that "[d]eactivation of Medicare billing privileges is considered an action to protect the provider or supplier from misuse of its billing number and to protect the Medicare Trust Funds from unnecessary overpayments." 42 C.F.R. § 424.540(c).

On October 11, 2016, First Coast mailed a letter to Petitioner directing him to revalidate his Medicare enrollment record no later than December 31, 2016, and First Coast warned that Petitioner's failure to revalidate could result in deactivation of his Medicare billing privileges, with a resulting gap in reimbursement. CMS Ex. 2 at 1. After Petitioner did not submit a complete enrollment application to revalidate his individual billing privileges, despite being given additional time to do so, First Coast deactivated Petitioner's individual billing privileges on June 21, 2017. CMS Ex. 4; see CMS Ex. 3. The evidence demonstrates that during this time period Petitioner revalidated the enrollment of Cardiovascular Clinic, Inc., but he did not revalidate his individual

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enrollment record prior to October 9, 2017. CMS Exs. 1 at 17 (letter informing Cardiovascular Clinic, Inc., PTAN # FV273A and NPI 1356615058 of the approval of its revalidated Medicare enrollment application); 5 at 1 (PECOS submission of individual enrollment application for Petitioner).

The pertinent regulation with respect to the effective date of reactivation is 42 C.F.R. § 424.520(d). Urology Grp., DAB No. 2860 at 7 ("The governing authority to determine the effective date for reactivation of Petitioner's Medicare billing privileges is 42 C.F.R. § 424.520(d)." (italics omitted)). Section 424.520(d) states that "[t]he effective date for billing privileges for physicians, non-physician practitioners, physician and non‑physician practitioner organizations ... is the later of – (1) [t]he date of filing of a Medicare enrollment application that was subsequently approved by a Medicare contractor; or (2) [t]he date that the supplier first began furnishing services at a new practice location." The DAB has explained that the "date of filing" is the date "that an application, however sent to a contractor, is actually received." Alexander C. Gatzimos, MD, JD, LLC, DAB No. 2730 at 5 (2016) (emphasis omitted). First Coast deactivated Petitioner's billing privileges because he did not revalidate his individual enrollment record in response to the revalidation request until October 9, 2017, which is when he electronically filed the enrollment applications for purposes of revalidation and reactivation that were processed to approval. CMS Exs. 4, 5. Based on the October 9, 2017 receipt date of the enrollment applications that were processed to approval, First Coast did not err in assigning an October 9, 2017 effective date for reactivated billing privileges. 42 C.F.R. § 424.520(d); see Urology Grp., DAB No. 2860 at 9 ("Moreover, the fact that a supplier must file a new enrollment application in order to reactivate its billing privileges is consistent with the language of section 424.520(d) and compelling evidence that the provision should apply to reactivations."); Willie Goffney, DAB No. 2763 at 6 ("It is certainly true that [the petitioner] may not receive payment for claims for services during any period when [its] billing privileges were deactivated."); Frederick Brodeur, DAB No. 2857 at 16 ("Petitioner remained enrolled in Medicare, but his deactivated status made [him] ineligible for payment for any covered services he furnished to otherwise eligible Medicare beneficiaries, pursuant to section 424.555(b), until he provided the information necessary to reactivate his billing privileges.").

Petitioner is challenging the assignment of an October 9, 2017 effective date of his reactivated billing privileges, which resulted in a more than three-month gap in his Medicare billing privileges. The deactivation of Petitioner's billing privileges on June 21, 2017, based on his failure to comply with a revalidation request, is not reviewable. Willie Goffney, DAB No. 2763 at 5 (stating no regulation provides appeal rights with respect to the contractor's deactivation determination); Frederick Brodeur, DAB No. 2857 at 12 ("A contractor's deactivation decision is not an initial determination subject to ALJ or [DAB] review."). I can only review the effective date assigned for Petitioner's reactivated billing privileges, and Petitioner has not identified evidence that the October 9, 2017 effective date of reactivation was inappropriate. Pursuant to 42 C.F.R.

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§ 424.520(d), First Coast had a legitimate basis to assign an effective date of October 9, 2017, for Petitioner's reactivated billing privileges.

Petitioner, in conjunction with his office manager, previously argued that he had revalidated his practice's enrollment in June 2017, and was "unaware that the revalidation was for the organizational NPI number ONLY and that it did not include the individual NPI number." CMS Ex. 1 at 7. Petitioner explained that he did not have a credentialing department and had a "had a very difficult time navigating the [Medicare enrollment" system," and ultimately hired a billing company to handle these issues. CMS Ex. 1 at 8. Petitioner reiterated that "[w]hen the Medicare revalidation was submitted on June 27, 2017 thru [PECOS] it was thought that the organizational and individual NPI numbers where [sic] being revalidated," and he explained that he had "put in place measures so that this will not be repeated." CMS Ex. 1 at 8-9. Petitioner's argument, in seeking reconsideration, was that he thought he had revalidated his individual enrollment; he did not allege that he did not receive the request that he revalidate his enrollment record. CMS Ex. 1 at 6-9. At the time Petitioner requested reconsideration, he requested an earlier effective date of reactivated billing privileges based on the financial hardship he had experienced as a result of the gap in billing privileges. CMS Ex. 1 at 8. Petitioner did not otherwise identify a legal or factual basis supporting an earlier effective date of reactivated billing privileges. CMS Ex. 1 at 6-9.

Again, I point out that I do not have the authority to review the deactivation of Petitioner's billing privileges, and the scope of my review is limited to whether First Coast assigned the correct effective date for Petitioner's reactivated billing privileges. See Frederick Brodeur, DAB No. 2857 at 12. Nonetheless, I will address Petitioner's newly raised argument that First Coast either did not mail the revalidation request and reminder letter to him or he otherwise did not receive them. P. Br. at 2-3. Petitioner has not submitted evidence, such as mail logs, evidencing that he did not receive the revalidation request or reminder letter. Nor has Petitioner identified witnesses who would testify to such at a hearing. To the contrary, Petitioner has submitted his own annotated copy of the June 22, 2017 letter informing him that his individual enrollment had been deactivated due to failure to timely revalidate, and the handwritten notations evidence the confusion that Petitioner referenced in his request for reconsideration. P. Ex. 6 at 1 (containing notations that include "6/27/17 submitted electronically" and "6/29/17 mailed Priority Mail," which appear to pertain to the revalidation application for Cardiovascular Clinic, Inc. that First Coast approved in August 2017); see CMS Ex. 1 at 6-9, 17.

Although Petitioner argues that CMS has the burden to demonstrate receipt by mail, he is mistaken. P. Br. at 3. CMS need not prove Petitioner's actual mail receipt of the revalidation request and reminder notice because it is presumed that CMS's Medicare administrative contractor personnel have performed their ministerial duties. See, e.g., Miley v. Principi, 366 F. 3d 1343, 1347 (Fed. Cir. 2004) (holding, in a case involving the

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mailing of a decision to a claimant for benefits, that the presumption of regularity "provides that, in the absence of clear evidence to the contrary, the court will presume that public officers have properly discharged their official duties"); U.S. Postal Serv. v. Gregory, 534 U.S. 1, 10 (2001) (discussing that the presumption of regularity attaches to actions of government agencies); United States v. Chem. Found., Inc., 272 U.S. 1, 14-15 (1926) (creating presumption that government officials and agents have properly discharged duties in the absence of "clear evidence to the contrary"); Brian K. Ellefsen, DO, DAB No. 2626 at 7 (2015) (DAB's discussion that the presumption of regularity applies to the actions of CMS and its Medicare administrative contractors).

Petitioner argues that the ALJ decision in Carlos T.J. Martinez, D.O., Inc., DAB CR4836 (2017), is controlling.6 P. Br. at 3. Petitioner is again mistaken, in that the dispositive facts here are dissimilar to the facts presented in the Martinez case. In Martinez, the petitioner, unlike Dr. Patel, responded to the revalidation request by submitting an enrollment application. However, Dr. Martinez submitted an incomplete application. CMS argued that the contractor had rejected the application, but CMS failed to produce evidence, such as a copy of a letter, that the contractor had, in fact, rejected the application and provided notice pursuant to 42 C.F.R. § 424.525(c). Martinez, DAB CR4836 at 8-9. The issue was not whether CMS or the contractor could prove that Dr. Martinez received the letter rejecting his enrollment application, but rather, whether the contractor had even rejected the application. Id. at 11-12. The Martinez decision does not support Petitioner's unsupported claim that CMS must prove that he actually received the October 2016 and May 2017 letters.

Petitioner previously claimed he thought he had revalidated his individual enrollment record, and did not allege that he had not received the revalidation request. CMS Ex. 1 at 6-9. Petitioner has not presented evidence, nor identified any testimonial evidence, that he did not receive the correspondence from First Coast, and Petitioner has failed to rebut the presumption that First Coast mailed the correspondence in October 2016 and May 2017. In fact, Petitioner's statements in his request for reconsideration, and his submission of his annotated copy of the June 22, 2017 letter as P. Ex. 6, only bolster the presumption that First Coast mailed the notices on the dates listed on the correspondence. First Coast had a legitimate basis to deactivate Petitioner's billing privileges when he failed to respond to the revalidation request, and it had a legitimate basis to assign a October 9, 2017 effective date for his reactivated billing privileges based on the date he submitted the enrollment application that was ultimately processed to approval.

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42 C.F.R. § 424.520(d). It appears, consistent with Petitioner's explanation in his request for reconsideration, that Petitioner mistakenly assumed he had revalidated his own enrollment record when he submitted the enrollment application to revalidate the enrollment record for Cardiovascular Clinic, Inc. CMS Ex. 1 at 6-9. Unfortunately, because Petitioner did not timely revalidate his individual enrollment record in response to the revalidation request, he incurred a gap in his billing privileges that I am not empowered to remedy. See Frederick Brodeur, DAB No. 2857 at 12.

To the extent that Petitioner's request for relief is based on principles of equitable relief, I cannot grant such relief. US Ultrasound, DAB No. 2302 at 8 (2010) ("Neither the ALJ nor the [DAB] is authorized to provide equitable relief by reimbursing or enrolling a supplier who does not meet statutory or regulatory requirements."). Petitioner points to no authority by which I may grant him relief from the applicable regulatory requirements, and I have no authority to declare statutes or regulations invalid or ultra vires. 1866ICPayday.com, L.L.C., DAB No. 2289 at 14 (2009) ("An ALJ is bound by applicable laws and regulations and may not invalidate either a law or regulation on any ground ....").

V. Conclusion

For the foregoing reasons, I uphold the October 9, 2017 effective date of Petitioner's reactivated Medicare billing privileges.

1. First Coast sent the letters to addresses in two cities, Lutz and Tampa, in Florida. CMS Ex. 2 at 1, 4. Petitioner continued to list the Lutz address as a correspondence address when he submitted the enrollment application for purposes of revalidating his enrollment record. CMS Ex. 5 at 2. Petitioner does not dispute that the letters should have been sent to the address in Lutz, Florida. Request for Hearing at 2.
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2. At that time, Petitioner reported new reassignments of benefits to, inter alia, Cardiovascular Clinic, Inc. CMS Ex. 5 at 4.
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3. This case was reassigned to me on March 8, 2019.
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4. Because a hearing is unnecessary, I need not address whether summary judgment is appropriate. Nonetheless, I note that Petitioner has not come forward with any evidence disputing CMS's statement of undisputed material facts.
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5. Findings of fact and conclusions of law are in italics and bold font.
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6. ALJ decisions are not precedential and do not bind ALJs in future decisions. "ALJ decisions have no precedential weight and so are useful only to the extent their reasoning is on point and persuasive." See, e.g., Wassim Younes, M.D. and Wassim Younes, M.D., P.L.C., DAB No. 2861 at 8 n.9 (2018), citing John M. Shimko, D.P.M., DAB No. 2689 at 10 (2016).
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